J. A24040/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF 

ANN NANCY LUCIANI

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: JOHN J. LUCIANI, JR.

AND CHRISTOPHER LUCIANI

:

:

No. 451 MDA 2018

Appeal from the Order Entered February 8, 2018,

in the Court of Common Pleas of Lackawanna County

Orphans’ Court Division at No. 35-2012-01377

BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: MAY 1, 2019

John J. Luciani, Jr. and Christopher Luciani appeal the February 8, 2018 

order of the Court of Common Pleas of Lackawanna County Orphans’ Court 

Division that sustained the preliminary objections of appellee, Nancy Nealon

(“Nealon”), trustee of the Ann Nancy Luciani Trust, and dismissed the 

declaratory judgment action filed by appellants. After careful review, we 

affirm.

The relevant facts and procedural history, as recounted by the trial 

court, are as follows:

On May 23, 2017, Petitioners Christopher Luciani 

(“Christopher”) and John J. Luciani, Jr. (“John, Jr.”) 

filed a Petition for Citation to Show Cause Why

Declaratory Relief Should Not Be Entered. Said 

Petition seeks the issuance of a Citation to [Nealon]. 

Count One of the Petition seeks declaratory judgment 

pertaining to the distribution of shares of closely held 

family business Concrete Step Units, Inc. 

(“Concrete Step”) from the Trust of John J. 
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Luciani, Sr. (“John, Sr.”), while Count Two seeks 

declaratory judgment pertaining to shares of stock of 

another closely held family business, Wayne Crushed 

Stone, Inc. (“Wayne Crushed”). The Court 

understands [appellants’] position to be that our 

Superior Court, in its Memorandum Opinion in the 

matter of In re: Estate of John J. Luciani, Sr., 

Deceased, No. 293 MDA 2016, 2016 Pa. Super. 

Unpub. LEXIS 4242, at *10 (Nov. 21, 2016), 

purportedly gave [appellants] a cause of action 

against [Nealon] and required [Nealon] to take certain 

actions with respect to the distribution of stock in

Concrete Step and Wayne Crushed. More specifically, 

[appellants] insist that the Superior Court’s ruling 

means that certain shares of Concrete Step formerly 

held by the John J. Luciani, Sr. Revocable Trust 

(“John, Sr. Trust”) must be distributed by [Nealon] to 

the Luciani children so that they receive legacies of 

equal value. In addition, [appellants] seek a 

declaratory judgment that the provisions of a 

Shareholder Agreement by and between Ann and the 

Luciani children govern the distribution of the 

Wayne Crushed stock. They seek this relief because 

they believe that [Nealon] seeks to enrich herself at 

the expense of her siblings and the expense of the 

other Trust beneficiaries. [Nealon], [appellants] 

state, has thus far ignored the Superior Court’s 

findings, and she also has failed to follow the 

provisions of the Trust instrument and the 

Shareholder Agreement as it pertains to the 

Wayne Crushed stock held by the Trust.

The parents of [appellants] and [Nealon] are 

John, Sr., who passed away testate in April of 2002, 

and Ann Nancy Luciani, who died in April of 2012. 

After the 2002 death of John, Sr.[,] his Will was filed 

for probate, and his wife and four children were the 

named legatees under the Will, and they also were 

named Beneficiaries under the terms of John, Sr.’s 

1993 Revocable Trust. John, Jr. and [Nealon] were 

named Co-Executors under John, Sr.’s Will, and the 

other two children, Christopher and Jill, were 

appointed Trustees under the 1993 Trust. At

John, Sr.’s death, his estate bequeathed 
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$1,156,084.00 to that Trust, and the Trust also 

retained $942,000.00 worth of stock in Concrete Step

and Wayne Crushed. Pursuant to distributions in 2003 

and 2006, Christopher and Jill, as Trustees, 

transferred the entirety of the Trust’s principal to their 

mother, Ann. In litigation regarding the Estate of 

John, Sr., John, Jr. filed a Petition requesting that 

[Nealon], as de facto Trustee, along with Christopher 

and Jill, as named Trustees, file a First and Final 

Account of the administration of the Estate of

John, Sr. Jill Mooty (Jill) complied, filing an Account 

showing that the Trust’s principal, including all of the 

stock in Concrete Step and Wayne Crushed, was

distributed to Ann.

Objections to the Account were filed by [appellants], 

and a hearing was conducted before the undersigned. 

Along with dismissing [Nealon] as a de facto Trustee, 

this Court denied all Objections. On appeal to the 

Superior Court, Chris[topher] maintained that the 

distributions of stock were inappropriate, under the 

terms of the Trust, and the Superior Court disagreed, 

stating:

Based on the certified record before us, 

we cannot say that the children were 

ultimately treated disparately. In fact, we 

cannot even ascertain how the principal of 

[John, Sr.’s] Trust was ultimately 

distributed. Mother’s trust agreement is 

not in the record. Nor is any accounting 

of her estate or trust.

Why [sic] it is possible that the 

distribution to Mother of the entirety of 

the principal of [John, Sr.’s] Trust, for the 

undisputed purpose of estate planning, 

was not entirely authorized by the trust, 

that conclusion cannot be reached without 

a finding that Mother’s estate plan was not 

in accordance with the stated intent of 

[John, Sr.’s] trust. Furthermore, there is 

no allegation, and no proof, that Mother 
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dissipated these assets in a manner that 

defeated [John, Sr.’s] Trust’s purposes.

. . . .

The certified record contains no evidence 

that Mother’s inter vivos gifts, estate, 

and trust distributions did not treat the

children equally. Therefore, Christopher 

did not establish his right to relief, and is 

due no relief on this issue on appeal.

In regard to Ann, her death occurred on April 5, 2012. 

She left a Will executed in October of 2011, which was 

admitted to probate in the Circuit Court, Fifth Judicial 

Circuit, in or in the vicinity of Lake County, Florida. 

Christopher presented in that Florida Circuit Court a 

Petition seeking that his mother’s Will be revoked

from probate. During litigation regarding Ann’s 

Estate, the parties stipulated, and the Court 

correspondingly Ordered, that if the Court found Ann’s 

2011 Will to be valid, then the 2011 Trust would be 

valid as well; along those same lines, the parties 

stipulated that if the Will was determined to be invalid, 

then the Trust would be as well.

A trial was held in Florida regarding Christopher’s 

Petition for Revocation. [Nealon] moved midway 

through the trial for an involuntary dismissal, based 

upon what she maintained was that [Christopher] had 

shown no right to relief. The Lake County Florida 

Court agreed, and granted [Nealon’s] Motion and the 

case was involuntarily dismissed on February 25, 

2014. By final decision, dated March 10, 2014, the 

Lake County Florida Court [o]rdered that 

Mrs. Luciani’s 2001 Will remained admitted to

probate. Because of the stipulation regarding the 

validity or invalidity of the trust was connected to the 

Will, the Court further determined that Ann’s 2011

Trust Agreement was valid.

In June of 2016, [Nealon] filed a First and Final 

Account of Personal Representative in the Estate of 

her late mother. The document was filed in Florida, 
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and it included as assets seven thousand five hundred 

shares of Concrete Step stock, and seventy-nine 

shares of Wayne Crushed. [Nealon] also filed a 

Petition for Discharge in the Ann Luciani Estate, and 

in the Petition, asked that distribution be made to the 

Trust of Ann Luciani included the seven thousand five 

hundred shares, and the seventy[-]nine shares. The 

Petition for Discharge was properly served, and no 

Objections were timely filed to that Petition. [On]

October 20, 2016, as no Objections were filed to the 

Account and Petition for Discharge, the Lake County 

Florida Court entered an Order of Discharge in the 

Ann Luciani Estate, ruling that the Estate was fully 

administered and properly distributed.

[Appellants] maintain that the Luciani Children have 

not been treated equally by the Ann Luciani Trust with 

respect to the Concrete Step shares that she received 

from John, Sr.’s Trust during her lifetime. They 

further maintain that the Trust of Ann, which now 

holds the Wayne Crushed and Concrete Step shares, 

should not be distributed in accordance with the

provisions of Ann’s Trust, but in accordance with the 

Superior Court’s Memorandum Opinion of 

November 21, 2016, a ruling which in fact affirmed 

our Court’s earlier rulings with respect to this 

litigation. The purpose of the instant declaratory 

judgment matter is, according to [appellants], not to

invalidate the stock shares distributed to either Ann 

or Ann’s Trust, and [appellants] are not challenging 

any determination of the Florida Court with respect to 

Ann’s Estate or Trust. The purpose of this proceeding, 

according to [appellants], is to obtain declaratory 

judgment that the Concrete Step shares distributed 

from John, Sr. Trust to either the Estate of Ann 

Luciani, or the Trust of Ann Luciani, must now be 

distributed to the Luciani Children, ensuring equal

treatment. . . .

. . . .

The First Preliminary Objection presented by [Nealon]

is that, based on Pa. O.C. Rule 3.9(b)(1), the Petition 

should be dismissed due to lack of jurisdiction, since 
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the Ann Luciani Trust Agreement designates that the 

situs of the Trust is in Florida, and the Trust 

Agreement is also governed by the laws of Florida.

Trial court opinion, 2/6/18 at 1-4.

In an order dated February 6, 2018, and filed on February 8, 2018, the 

trial court sustained the preliminary objection regarding lack of jurisdiction 

and dismissed the declaratory judgment action. The trial court filed an opinion 

that same day. On March 9, 2018, appellants filed a notice of appeal. The 

trial court did not order appellants to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellants raise the following issues for this court’s review:

1. Did the [trial] Court err as a matter of law in 

sustaining appellee’s preliminary objections by 

finding that it lacks jurisdiction to adjudicate 

appellants’ claim?

2. Was the statement by a panel of this Court in a 

related case that the “. . . Trust gave the 

trustees significant discretion in how to 

distribute the principal of the Trust, so long as 

the distribution was done in a manner that 

ultimately treated [the children] equally” dicta 

or decisional?

Appellant’s brief at 4.

Initially, appellants contend that the trial court erred as a matter of law 

when it sustained appellee’s preliminary objection finding that it lacked

jurisdiction. 

Our analysis begins with a recitation of the applicable 

legal standards:
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Our standard of review of an order of the 

trial court overruling [or granting] 

preliminary objections is to determine 

whether the trial court committed an error 

of law. When considering the 

appropriateness of a ruling on preliminary 

objections, the appellate court must apply 

the same standard as the trial court.

De Lage Landen Fin. Servs., Inc. v. Urban P’ship, 

LLC, 903 A.2d 586, 589 (Pa.Super. 2006). “On an 

appeal from an [o]rder sustaining preliminary 

objections, we accept as true all well-pleaded material 

facts set forth in the appellant’s complaint and all 

reasonable inferences which may be drawn from those 

facts.” Filipovich v. J.T. Imports, Inc., 431 

Pa.Super. 552, 637 A.2d 314, 316 (1994). “Where, 

as here, upholding sustained preliminary objections 

would result in the dismissal of an action, we may do 

so only in cases that are clear and free from doubt.”

Ellenbogen v. PNC Bank, N.A., 731 A.2d 175, 181 

(Pa.Super. 1999). “Any doubt should be resolved by 

a refusal to sustain the objections.” Id.

“[I]t is well-settled that the question of subject matter 

jurisdiction may be raised at any time, by any party, 

or by the court sua sponte.” B.J.D. v. D.L.C., 19 

A.3d 1081, 1082 (Pa.Super. 2011) (quoting Grom v. 

Burgoon, 448 Pa.Super. 616, 672 A.2d 823, 824-25 

(1996)). Our standard of review is de novo, and our 

scope of review is plenary. Id. “Generally, subject 

matter jurisdiction has been defined as the court’s 

power to hear cases of the class to which the case at 

issue belongs.” Verholek v. Verholek, 741 A.2d 

792, 798 (Pa.Super. 1999).

Jurisdiction is the capacity to pronounce a 

judgment of the law on an issue brought 

before the court through due process of 

law. It is the right to adjudicate 

concerning the subject matter in a given 

case. . . . Without such jurisdiction, there 

is no authority to give judgment and one 

so entered is without force or effect. The 
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trial court has jurisdiction if it is 

competent to hear or determine 

controversies of the general nature of the 

matter involved sub judice. Jurisdiction 

lies if the court had power to enter upon 

the inquiry, not whether it might 

ultimately decide that it could not give 

relief in the particular case.

Aronson v. Sprint Spectrum, L.P., 767 A.2d 564, 

568 (Pa.Super. 2001) (quoting Bernhard v. 

Bernhard, 447 Pa.Super. 118, 668 A.2d 546, 548 

(1995)).

Estate of Gentry v. Diamond Rock Hill Realty, LLC, 111 A.3d 194, 198 

(Pa.Super. 2015).

Appellee brought her preliminary objection on the basis that the trial 

court lacked jurisdiction to hear appellants’ petition. (Trustee Nancy Nealon’s 

preliminary objections to the petition for citation to show cause why 

declaratory relief with regard to the Revocable Agreement of Trust of 

Ann Nancy Luciani dated October 4, 2011 should not be entered, 7/3/17 at 

7-8.)

Appellants argue that this case does not involve the validity of the 

Revocable Agreement of Trust of Ann Nancy Luciani dated October 4, 2011 

(“Ann Trust”) or the interpretation of the provisions of the Ann Trust. 

Appellants argue that what is at issue is the distribution of the Concrete Step

shares. (Appellants’ brief at 13.) Further, appellants assert that the trial court 

has subject matter jurisdiction over an inter vivos trust. (Id. at 14.)
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This court does not agree with these assertions. While the Orphans’

Court has subject matter jurisdiction over an inter vivos trust, see

Section 711 of the Probate, Estates, and Fiduciaries Code (“Code”), 

20 Pa.C.S.A. § 711, it does not have a claim of jurisdiction over any trust 

entered in any state across the country. Appellants argue that Pennsylvania,

rather than Florida, has jurisdiction over Nealon because she is a Pennsylvania 

resident. (Appellants’ brief at 15.) 

Section 714 of the Code, 20 Pa.C.S.A. §714, provides that nothing in 

the chapter of the Code regarding orphans’ courts shall be construed to 

interfere with rules of law applicable to the determination of whether a 

Pennsylvania court has jurisdiction over the subject matter enumerated in the 

chapter.

Although not binding on this court as it is the decision of the Court of 

Common Pleas of Philadelphia County, In re Holdeen’s Trust, 58 Pa. D. & 

C.2d 602 (Philadelphia Cty. 1972), assists this court in its analysis. In 

Holdeen, the Court of Common Pleas of Philadelphia County determined that 

it had jurisdiction to decide questions relating to petitions for declaratory 

judgment and petitions for the reformation of trust instruments. The common 

pleas court reached this decision even though Jonathan Holdeen, the settlor 

of the trust at issue, lived in New York for most of his life, was a resident of 

that state when he created the trust, and was a resident of New York when he 

died. For the Holdeen court, the key factors were that the settlor expressed 
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his intention in the trust documents that the assets of the trusts be held in 

Pennsylvania and that the trusts be administered in either Pennsylvania or 

Massachusetts. The trustees chose Pennsylvania. In addition, the chief 

remainderman of the trust was the Commonwealth of Pennsylvania and 

substantial assets were held in Pennsylvania. The common pleas court also 

held that the questions of the validity of a trust provision was a question of 

Pennsylvania law which Pennsylvania courts were best equipped to resolve. 

Holdeen, 58 D. & C.2d at 614, 616. The common pleas court determined 

that a trust settlor has the right to choose the jurisdiction in which his or her 

trust is to be administered and that choice is not limited to the state where 

the assets of the trust are located. Id. at 616-617.

Similarly, though not binding on this court, the trial court relied on 

Saffan v. Saffan, 588 So.2d 684 (Fla. Dist. Ct. App. 1991). In Saffan, the 

District Court of Appeal of Florida for the Third District held that where the 

grantor of a trust was a Florida resident; the trust was executed in Florida;

the trustee of the trust was a resident of Florida; the trust contained a 

provision that it would be administered in accordance with Florida law; the 

trust corpus contained property purchased and owned by the grantor while a 

Florida resident; and the trust was administered in Florida, the situs of the 

trust rested in Florida. The Saffan court also held that the situs is not affected 

by an out-of-state residence by the trustee to the extent appellants argue that 

Nealon is not a Florida resident.
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Here, Ann Luciani, the grantor of the trust, was a resident of Florida. 

Her estate was opened and the will was probated in Florida. Further, the trust 

was settled in Florida and assets were conveyed pursuant to the trust terms 

in Florida. Appellants concede in the petition that Ann Luciani died with her 

domicile in Florida and that the trust instrument designates Florida as the situs 

of the trust and that all questions regarding the validity, construction, and 

administration of the trust come under Florida law. All of these factors support 

a conclusion that Florida, not Pennsylvania, had jurisdiction over the trust.

Furthermore, the trial court also addressed the fact that the will of 

Ann Luciani was contested in Florida courts; and in the course of the litigation,

there was a stipulation that if the will was determined to be valid, then the 

Ann Trust would be determined to be valid. The trial court concluded that 

appellants1 had no authority to admit to the validity of the trust in one state 

and then to challenge its validity in another:

Further, matters regarding the Estate of Ann Luciani 

were litigated in the state of Florida, as [Nealon]

reminds this Court, and the Trust was in fact held to 

be valid by the Lake County Florida Court. The Trust 

Agreement identified Ann Luciani as a resident of Lady 

Lake, Florida. Citing 20 Pa. C.S.A. § 7708(a) and

Saffan v. Saffan, 588 So.2d 684 (Fla. Dist. Ct. App. 

1991), a case which held that where Grantor, a Florida 

resident who intended for jurisdiction over Grantor’s 

Trust to be in Florida, [Nealon] asks that the Petition 

pending before our Court be dismissed for want of 

jurisdiction. Again, the Estate and Trust of 

Ann Luciani were litigated to conclusion in Florida, 

 

1 Actually, Christopher Luciani was the only appellant to contest the validity 

of the will in Florida.
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several years ago. The Will and Trust of Ann were 

deemed valid. Administration was completed, and 

distribution followed. A Court Order closed the 

matter.

While the Court understands [appellants’] assertions 

that the ultimate distribution of the Estates and Trusts 

of each of their parents proved to be more favorable 

to [Nealon] than to them, we have come across no 

statute or decisional authority which allows heirs or 

beneficiaries who are dissatisfied with the 

administration and finalization of any estate in one 

state, including the litigation before and adjudication 

of legal questions by a court of that one state, to file 

an action concerning the same Decedent’s Estate in a 

Court of another state. Although various courts may 

sometimes have concurrent jurisdiction with respect 

to certain matters, a court’s jurisdiction should 

ordinarily not be exercised so as to conflict with the 

jurisdiction of another court, and a court should not 

interfere in a matter within the exclusive jurisdiction 

of another court. Com. Ex rel. Rosequist v. 

Rosequist, 268 A.2d 140 (Pa. Super. 1970); Trout 

v. Lukey, 166 A.2d 654 ([Pa.] 1961). The instant 

declaratory judgment seeking review of Ann Luciani’s 

Estate and Trust, which were litigated previously in 

Florida and found to be valid, as asking the Court of 

Common Pleas to essentially overturn Orders of the 

Lake County Florida Court. [Appellants’] requests in 

fact raise the issues of res judicata and collateral 

estoppel, but the Court need not explore those 

principles in the context of this Estate, because we

simply lack jurisdiction. The Trust Agreement at issue 

is a Florida Trust that has been ruled valid in Florida 

by a Florida Court. The Petition for declaratory

judgment is invalid, and we will, in the attached 

Order, grant [Nealon’s] preliminary objection 

concerning jurisdiction and dismiss this action. 

Trial court opinion, 2/6/18, at 5.

Based on the record before this court, the applicable statutes and case 

law, and the parties’ briefs, this court determines that the trial court did not 
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commit an error of law when it sustained Nealon’s preliminary objection for 

lack of jurisdiction and dismissed appellants’ petition.2

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/1/2019

 

2 As we affirm the trial court’s determination that it lacked jurisdiction to 

adjudicate appellants’ petition, we need not address appellants’ remaining 

issue.